The firm had been retained to assist Della-Vedova and Sons with a fee dispute brought against it by its former accountants.

When the costs of the representation climbed to above $200,000, Lucia Della-Vedova told the court she met with Bruce Duckham in February 2019 to discuss the high figure and request a discount.

She alleged the two came to an accord and satisfaction to have the legal bills capped at $100,000, inclusive of GST.

While Duckham did not deny the agreement was made, he said it did not bind the firm because it was not made by a deed.

In the alternative, Duckham said it was unconscionable for Della-Vedova and Sons to rely upon the agreement because it was implicit the company would continue to retain the law firm only if the proposal for $100,000 was accepted, and the company failed to do so.

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A former employee of the firm, who left at the end of April 2019, told the court Duckham had observed members of the Della-Vedova family in her new office to sign papers. It was unclear why he was there.

Afterwards, Duckham allegedly approached the former employee’s office and said he was “going to have to rethink” the discount.

Asked on what basis, Duckham allegedly said “there was no need, no written deed”, or words to that effect, the court was told.

“After his conversation with [the former employee], he adopted the position that the agreement he reached with Ms Della-Vedova was clearly not enforceable, not having been made by deed and there otherwise being no consideration for the defendant’s agreement to accept $100,000 in satisfaction of its costs,” the court said.

Duckham pursued District Court proceedings for payment of $86,000 – in addition to the $100,000 already paid – but was unable to maintain this action under the Legal Profession Act 2008.

An assessment of costs application was made instead, but Della-Vedova and Sons filed a writ for a declaration that it was not liable to pay any further amount and an injunction to restrain B W Duckham & Co from taking any further steps in the assessment proceedings.

Justice Gary Cobby of the Supreme Court has determined Della-Vedova and Sons was entitled to this relief.

Justice Cobby found the payment of the $100,000 constituted “good consideration” for the law firm’s promise to accept the amount in satisfaction of its claim to payment, “both because the agreement constituted the settlement of a bona fide dispute as to the amount due” and because the payment of a lesser amount at a time earlier then when it was due “may also constitute good consideration”.

“I accordingly find that the agreement made … upon Duckham’s acceptance of Ms Della-Vedova’s proposal was made for good consideration, and, subject to the defences raised by the defendant, binding upon the parties,” Justice Cobby said.

Turning to the unconscionable conduct allegations, Justice Cobby said he could not accept an inference the firm would not have compromised on a $200,000 bill by accepting half that amount in the absence of evidence or cross-examination.

Further, Justice Cobby said a failure to comply with costs disclosure obligations meant the firm was not entitled to any amount, much less the $200,000, until the costs were assessed, “with the further consequence that the defendant might not receive payment of whatever amount was assessed to be due by the plaintiff for some time”.

Having regard to two letters under cover of which the costs agreement was said to have been provided, Justice Cobby was not prepared to infer Duckham did not appreciate the consequences of the firm’s failure to comply with costs disclosures in considering the $100,000 offer.

Prior to the trial, it became evident Duckham intended to act as counsel, notwithstanding it was obvious he had a different recollection of the February 2019 conversation.

Given the Legal Profession Uniform Law Solicitors’ Conduct Rules 2015 prohibited Duckham from acting as solicitor, and given “it was clearly inappropriate” for him to do so at the same time as being the principal witness, Justice Cobby rejected this application.

However, Duckham gave an undertaking he would not give evidence at the trial and was permitted to act as counsel.

Despite this undertaking, Duckham sought to rely on an affidavit he swore in April 2020 and filed in the District Court proceedings. He also sought to refer to and tender a copy of an affidavit of Ms Della-Vedova, which contained a copy of his own affidavit.

Justice Cobby told Duckham he would be unable to rely on his affidavits. Duckham did not give evidence at trial.

The case is Della-Vedova and Sons v Dusol Pty Ltd trading as B W Duckham & Co [2025] WASC 160 (6 May 2025).